In “Unspeakable Ethics, Unnatural Law,” Arthur Leff argues that unless God is taken to be the unsurpassable moral authority behind human law, the law collapses into various arbitrary arrangements, none of which can survive the taunt, “But says who?” Leff begins by claiming that we moderns want to affirm two contradictory
- [There is a] complete, transcendent, and immanent set of propositions about right and wrong, findable rules that authoritatively and unambiguously direct us how to live righteously.
- We are wholly free, not only to choose for ourselves what we ought to do, but to decide for ourselves, as individuals and as a species, what we ought to be.
Statements 1 and 2 are logically incompatible. Nevertheless, “What we want, Heaven help us, is simultaneously to be perfectly ruled and perfectly free, that is, at the same time to discover the right and the good and to create it.” This tension “between found law and made law” explains legal writers’ recent suspicion that “we are able to locate nothing more attractive, or more final, than ourselves.”
To find authoritative law, we “must reach for a set of normative propositions in the form ‘one ought to do X,’ or ‘it is right to do X,’ that will serve” as the foundation for a legal system. This found law “is not created by the finder, and therefore it cannot be changed by him, or even challenged.” if we imagine a legal system based on moral obligations that are absolutely binding, such as “Thou shalt not commit adultery,” we must recognize that we need an evaluator, “some machine for the generation of judgments on states of affairs.”
If the evaluation is to be beyond question, then the evaluator and its evaluative processes must be similarly insulated. If it is to fulfill its role the evaluator must be the unjudged judge, the unruled legislator, the premise maker who rests on no premises, the uncreated creator of values.Now what would you call such a thing if it existed? You would call it Him.
Such a “God-grounded system has no analogies.” If God exists, “We are defined, constituted, as beings whose adultery is wrong, bad, sinful. Thus committing adultery in such a system is ‘naturally’ bad only because the system is supernaturally constituted.”
God’s moral pronouncements would be “performative utterances”— statements that do not describe states of affairs but constitute them by the performance of the utterances. “There is no question whether I am accurately reporting on the world, because I am in the process of constituting it.”Consider, as well, the performative utterances by those officiating at weddings: “I now pronounce you husband and wife.” Unlike the utterances of God, these words do not in themselves create the realities; rather, the utterances must be given according to certain rules and must be spoken by the appropriate persons.
But Leff moves beyond conventional performative utterances to the question of ultimate, objective moral authority. He claims that no one has this moral authority a priori to determine moral truth by fiat.
There is no one who can be said a priori to have that power unless the question posed is also being begged. Except, as noted, God. It necessarily follows that the pronouncements of an omniscient, omnipotent, and infinitely good being are always true and effectual. When God says,“Let there be light,” there is light. And when God sees that it is good, good is what it is.
Leff then demurs that he cannot pronounce on whether God exists or not. He brought up the matter only to show why legal theorists despair of issuing legal or moral propositions without benefit of a “supernatural grounding.” Only God’s will could survive “the cosmic ‘says who?’” and remain authoritative, he claims. Legal and ethical theory must reckon with “the fact that, in the Psalmists words, there is no one like the Lord. If he does not exist, there is no metaphorical equivalent.” This is because
no person, no combination of people, no document however hallowed by time, no process, no premise, nothing is equivalent to an actual God in this central function as the unexaminable examiner of good and evil. The socalled death of God turns out not to have been just His funeral, it also seems to have effected the total elimination of any coherent, or even more than momentarily convincing ethical or legal system dependent upon authoritative extrasystemic premises.
Only God, as the “final evaluator,” could provide the moral premises that are outside of the merely human system. In contrast, any surrogate evaluator “must be one of us, some of us, all of us—but it cannot be anything else.”
Without God any legal or moral system will be differentiated by its axiomatic choice of who serves as the moral evaluator. “Who among us, that is, ought to be able to declare ‘law’ that ought to be obeyed?” Leff analyzes various social God candidates who serve as finite evaluators for law and morality.
First, he examines descriptivism, which takes legal systems as brute facts to be interpreted. This might be called “legal conventionalism,” although Leff doesn’t use that term. Descriptivism does not consider who generated the legal system but explores “what rules are actually obeyed” without trying to justify them or condemn them. “If law is defined as the command of the sovereign, then the sovereign is defined as whatever it is the commands of which are obeyed.” There is no “extrasystemic” (or transcendent) principle available by which to judge the sovereign. So descriptivism “‘validates’ every legal system equally.” “Under Descriptivism,
it is impossible to say that anything ought or ought not be.” God’s role as final evaluator is given, ipso facto, to any and every legal system.
But, in the absence of God, why should the sovereign, or whoever generates law, “be entitled to final respect”? Perhaps “each person is his own ultimate evaluative authority.” This is called personalism. On this view, individuals now have the prerogative of determining good and evil through performative utterances: “What is said to be bad or good, wrong or right, is just that for each person, solely by reason of it being uttered.” The problem with descriptivism is that it validates any normative system, but the problem with “the ‘God-is-me’ approach is that it validates everyone’s individual normative system, while giving no instruction in, or warrant
for, choosing among them.” How can a multiplicity of gods (or Godlets, as Leff calls them), all with identical moral rank, be morally regulated—in the absence of a final evaluator above them? When “Godlet preference” is the only basis for “interdivinity transactions,” anything goes. No appeal to a contract or treaty will rescue this sad situation, since on the personalist view, “a promise ought to be kept only if each promiser thinks it ought to be kept; the value of promise-keeping is no different from any other.”
Perhaps we can find some way to distinguish between individuals quantitatively
or qualitatively. “One might choose to stand, that is, on the most evaluations or the best ones.” But majoritarianism fails as well, since the principle “the majority opinion should set the law” cannot be generated by any final evaluator.
Perchance logic will provide a solution for the problem of normative evaluation. The considered judgments of rational people whose moral systems are internally consistent should count more than the slapdash moral whims of the illogical. But here too the rational moralist can only be favored if “someone has the power to declare careful, consistent, coherent, ethical pronouncements ‘better’ than the sloppier, more impulsive kind. Who has that power and how did he get it”?
Leff considers other possible sources of evaluations (including making a political constitution into a God), but all of them are subject to the same essential problem, which he refers to as “the cosmic ‘sez who’” objection. A world without God is a world without objective moral authority. Leff ends his essay with a compelling irony.
All I can say is this: it looks as if we are all we have. Given what we know about ourselves and each other, this is an extraordinarily unappetizing prospect; looking around the world, it appears that if all men are brothers the ruling model is Cain and Abel. Neither reason, nor love, nor even terror, seems to have worked to make us “good,” and worse than that, there is no reason why anything should. Only if ethics were something unspeakable by us, could law be unnatural, and therefore, unchallengeable. As things now stand, everything is up for grabs.
Napalming babies is bad.
Starving the poor is wicked.
Buying and selling each other is depraved.
Those who stood up and died resisting Hitler, Stalin, Amin and Pol Pot—
and General Custer too—have earned salvation.
Those who acquiesced deserve to be damned.
There is in the world such a thing as evil
[All together now:] Sez who?
God help us.
While Leff claimed earlier that he would refrain from settling the question of God’s existence, he now affirms God’s nonexistence: “It looks as if we are all we have.” Yet just a few words later Leff affirms the existence of objective good and evil regarding our response to tyrants and says, “There is in the world such a thing as evil.” But even this statement is subject to the “sez who?” objection. In light of this conundrum: “God help us.” He has argued himself into a corner, but from that corner he cries out for something he cannot reach, given his Godless presuppositions.
We can summarize Leff’s dilemma through two arguments sharing the same conclusion. The arguments are structurally the same as the one given at the beginning of this chapter, but they emphasize law as well as objective morality.
- If there is no God, then morality and law lose their foundations and there is no objective good and evil. (Leff is supported in this by Russell, Nietzsche, Stirner, Ruse, Sartre, Camus, Dostoyevsky and others.)
- There is objective good and evil. (Illustrated by the examples Leff cites, as well as those I provided earlier in the chapter. Leff uses the “arresting counterexample” strategy that I mentioned earlier in my case against relativism.)
- Therefore: (a) It is false that morality and law have no ultimate foundations and that there is no objective good or evil.
- Therefore: (b) God exists as the ultimate Evaluator.
Leff’s argument may be simplified as a disjunctive syllogism:
- Either God exists (who provides the ultimate moral evaluation) or nihilism is true (all moral evaluations are arbitrary).
- Nihilism is false because there is objective good and evil.
- Therefore, God exists (as the ultimate moral evaluator).
For Leff to evade nihilism he must accept these arguments. But to do so, he must accept God as the “final evaluator” or the “evaluator-in-chief.” Instead, Leff cries out to a God he denies. Despite the force of these arguments, nontheistic detractors have two lines of defense against this conclusion: the Euthyphro dilemma and atheistic moral realism. We will address each in turn.